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Google Wins a Court Battle
Gosalia wrote to let us know about an article which opens with: "In a legal win for Google, a federal judge dismissed a lawsuit filed by a writer who claimed the search giant infringed on his copyright by archiving a Usenet posting of his and providing excerpts from his Web site in search results." Thankfully, we can all still read Usenet articles on Google as well as other archive services.
I suspect a true test of copyright around this will dwell on the difference between ephemeral storage and long-term to permanent storage. It's one thing for a computer to cache that mp3 you just downloaded from a site. It's another for that computer to serve that mp3 up indefinitely or permanently. The former may be a necessity for distributing the item. The latter is not.
If NNTP servers were lucrative targets, copyright holders would be challenging the right of ISPs to keep articles on their servers indefinitely. However, it's the web rather than Usenet that has taken over the world, so copyright holders are more likely to go after web companies and web presentations of their works.
Well like it or not, ISPs run web caches and they make money out of it
I see your point, and I believe that caches get special treatment under copyright law, because they are ephemeral copies. In other words, if an ISP turned its cache into a browsable web site, they'd be in trouble.
If you have to _explicitly_ sign away rights rather than being allowed to _implicitly_ sign them away then the Internet is screwed anyway - you'd have to sign a licence with every usenet posting allowing all NNTP servers to archive your article for an arbitrary length of time for usenet to even work. Similarly you'd have to sign a licence allowing people to quote parts of your emails when they reply.
Sure, fair use exists. It's not a violation of my copyright when you quote me. But what we're talking about here isn't fair use. Google isn't presenting a small portion of the original work, in a way that does not take away from the marketability of the original. They are presenting the *entire* work.
Similarly, in the NNTP case, Joe may be fine with servers storing and forwarding articles as necessary to make Usenet run. BUt that does not mean he has signed away his copyright. Certainly, setting expiration times to "never" and opening up the server to the world equals what Google has done. But just because a Usenet admin can, techically, turn expiration off, does not mean he is allowed to do so under copyright.
Somewhere, in the eventual case that looks at this, a judge is going to say "well, expiration times less than n days are ephemeral, and more than that is right out." It hasn't happened yet, that I know, but it certainly will if someone chooses to test it in court.
Brad Templeton, a Usenet mover since the dawn of time, has this to say in his Copyright FAQ:
http://www.templetons.com/brad/copymyths.html
The court said that in its ruling (that Google "Maintains The USENET." It equated Google with an ISP network cache or a system cache rather than a republisher or rebroadcaster. I don't believe that this is correct. The more intriguing claim is the defamation claim, because in California, the Superior Court held in Barrett v. Rosenthal that "Section 230" immunity for libel does not extend to distributors (only to publishers). If that ruling holds up, it means my case would have won in CA. That case is presently before the CA Supreme Court. The SCOTUS is likely going to resolve all of these issues no matter what, and no one lawsuit will dominate the process. Mine only covers the Eastern District of PA and the Third Circuit, when I appeal, which I will. Prior to the appeal, I'll be moving for reconsideration of the dismissal, and noting what I considered a miscontruing of the facts and a misapplication of the law regarding Google's status as a system cache, an ISP, or claims that it "maintains the USENET."
Most people want their material to go all over the place. Some might not want their material to end up on the web, for instance. They're within their rights dictate how their material is distributed, even if it throws a huge monkey wrench into the works.
I'll let you draw your own conclusions about the current state of copyright law.
After all, I am strangely colored.
I would personally rather be able to stop the AP in cases when this is a bad thing.
Do you really not understand the difference? Consider a targetted marketing campaign for, say, an online store. You might set higher prices for people in New York than SLC Utah, and advertise those prices locally. Worse yet, you might be advertising different sales depending on location. Suddenly, everyone might get 50% on designer jeans, instead of just the SLC guys, who usually buy Levi's anyway.
I don't know the motives behind the TFA's subject's action, but I can see many plausible reasons for this kind of access control. Nevermind the fact that control of distribution channels has been a part of copyright law since its inception, and should be expected.
After all, I am strangely colored.
I suppose the analogy I would draw out is that both HTTP and NNTP are redistributed by "network nodes" in the relevant networks -- TCP/IP for the first and a set of connected servers for the latter. In the HTTP case, Google downloaded images, modified them, and then served them to the public. As clients, they were the last dot on the tracert between them and the servers they downloaded from. Their argument is that as NNTP providers, they're entitled to download content from other sites, modify it, and serve it to the public in full despite the fact that there is little difference between the relevant networks. They're both peer-to-peer networks. As clients, they are still the last dot on the tracert between themselves and the servers they get stuff from. Moreover, they're obviously the last "nntp node" to touch the data before it is modified and served.
Does my analogy make any sense? Sorry if it doesn't -- it's been a long night.
After all, I am strangely colored.
Posting to Usenet doesn't invalidate licensing. Suppose it did. Then any Usenet server hosting a binary copy of the Linux kernel could redistribute it as they saw fit. This is silliness and clearly false. Ergo, they are bound by the GPL, though I doubt anyone cares that they aren't in compliance.
After all, I am strangely colored.
The law certainly thinks companies capable of agency, which is what this case refers to.
How exactly was someone in 1990 responsible for Google archiving and redistributing their copyrighted material in 2006?
After all, I am strangely colored.